COURT FILE NO.: CV-14-498609

DATE: 20150807

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Marina Bay Sands Pte. Ltd., Plaintiff/Responding Party

AND:

Jian Tu aka Tu Jian, Defendant/Moving Party

BEFORE: Sean F. Dunphy J.

COUNSEL:
David Levangie, for the Plaintiff/Responding Party

Daniel MacKeigan, for the Defendant/Moving Party

HEARD: August 5, 2015

REASONS FOR DECISION

[1] When bringing a motion to set aside default judgment, the moving party bears an important onus not dissimilar to the onus faced by a party facing a summary judgment motion. Judgment once granted – even a default judgment - is a judgment of this court and is entitled to all of the deference and respect of this court until set aside. The defendant thus faced with the peril of enforcement must move and move swiftly. Further, in moving, the defendant must put its best foot forward. The Superior Court is not a sandbox playground where “do-overs” can be expected on demand. The stakes are high and this is no time to keep powder dry. If there is any reason the judgment ought not to stand, any and all reasons must be diligently and properly placed before the court.

[2] In the present case, the defendant has built his claim to set aside default judgment on two slender straws – a procedural argument based upon the exclusive jurisdiction clause in the underlying contract in favour of Singapore laws and courts and a bald, second-hand assertion of failure to receive the Statement of Claim by means of the substituted service authorized by an order of the court. He has neglected to provide any foundation in evidence to justify the court exercising its discretion on any other ground should his evidence on these two matters fail to hit the mark is it did in this case.

[3] Two fundamental questions remain unanswered in the evidence filed by the defendant. First, is there any credible reason to believe that the defendant had no notice of the proceedings against him or the judgment actually issued before the Sheriff commenced enforcement proceedings upon his house in April 2015? The evidence provided has not persuaded me that he did not and, as moving party, this was his onus. Second, does the defendant have any basis to deny liability in whole or in part on the underlying claim? The evidence provided by the defendant unwisely ignored this issue entirely and has left me with the inference that delay for delay’s sake is the only object of this motion.

[4] On a motion to set aside default judgment brought as long after the judgment was issued and based on a claim for liquidated damages as was the case here, it behooves a moving party to address both of these questions (among others) as forcefully as can be. Hearsay statements and carefully limited statements will not cut it. Rule 19.08(1) of the Rules of Civil Procedure grants the court discretion to set aside default judgment but the moving party must provide the court with a reason to believe that the interests of justice requires it to do so. While the hurdle was not particularly high and our courts will generally err in favour of allowing a defendant to have his or her day in court on the merits, this defendant has not managed to clear the bar.

[5] In the circumstances, I have concluded that there are no grounds before me sufficiently compelling to warrant the exercise of my discretion to set aside the default judgment under Rule 19.08 of the Rules of Civil Procedure. If the default judgment remains undisturbed, I have no basis to go on to consider the defendant’s motion to dismiss or stay the action pursuant to the “exclusive jurisdiction” clause in the Credit Agreement. I dismissed the motion with costs at the hearing on August 5, 2015 and indicated that written reasons would follow shortly. These are those reasons.

Facts

[6] This is a motion brought by the defendant Jian Tu to set aside the default judgment dated June 28, 2014 and to strike the Statement of Claim or for leave to file a Statement of Defence.

[7] The plaintiff, Marina Bay, issued the statement of claim on February 18, 2014. The claim was for amounts owing under a credit agreement between the plaintiff and the defendant. The amount claimed was the Canadian dollar equivalent of SGD $9,940,683 plus prejudgment interest arising from advances made in February 2013 which the defendant had failed to repay. Tragically, these very significant debts arise from markers given to support gambling at the plaintiff’s casino and, given the credit history obtained by the plaintiff and produced in the responding motion record, it would appear the plaintiff is not the only casino from whom the defendant has obtained credit. A long list of other casinos, both in Ontario and abroad, appears upon it.

[8] The plaintiff had considerable difficulty in serving the Statement of Claim. The plaintiff made three unsuccessful attempts at service at a property registered in the name of the defendant, 72 Times Avenue, Markham, Ontario between March 6 and March 15, 2014. On each occasion, a contact card was left. On the second of the three attempts, the contact card that had been left on the first attempt had been removed. No reply was ever received by the process server.

[9] The plaintiff sought a motion for substituted service on April 25, 2014. That first motion was dismissed without prejudice to moving again by Master Dash who noted that the attempted service had occurred during a period when many Canadians might be away on vacation.

[10] Subsequent to that motion, two further attempts at service were made to the same address in Markham. Once again, a contact card left on the first visit was removed by the second but no return call was received. On one of the occasions, a light was visible on the second floor of the house but there was no answer to knocks on the door.

[11] Armed with a fresh affidavit of attempted service, a further motion for substituted service was brought on April 29, 2014. On that second motion, evidence was filed before Master Short indicating the plaintiff had obtained a copy of the defendant’s Canadian passport issued at Toronto in 2010 in connection with the Credit Agreement referenced in the Statement of Claim. The evidence also established that the property at which service had been attempted was registered in the name of the defendant and his spouse, Li Kang, and that the couple had granted a mortgage on the property in May 2009 which was still outstanding. Further, an Equifax Consumer Report showed the defendant as having the same address of 72 Times Avenue.

[12] The motion for substituted service was heard on May 2, 2014 before Master Short, and this time the plaintiff was successful. The order provided that service would be effective 30 days following the mailing of the Statement of Claim and order by prepaid letter mailed to the defendant at the address on 72 Times Avenue.

[13] On May 5, 2014, the plaintiff served the Statement of Claim in accordance with the order of Master Short and provided the court with an affidavit of service. There is no suggestion that the plaintiff has failed to follow the order of Master Short nor has any evidence impugning the affidavit of service been proffered.

[14] On June 28, 2014, default judgment was obtained in the amount of the Canadian dollar equivalent of SGD $11,127,028.62 plus $2,000 for costs, both amounts bearing post-judgment interest at the rates of 13% and 3% respectively.

[15] The plaintiff proceeded to register writs of seizure and sale on July 21, 2014, and made a number of attempts to serve the judgment upon the defendant:

a. By regular and registered mail on July 23, 2014;

b. By registered mail on August 27, 2014;

c. By courier on September 4, 2014; and

d. By regular mail on January 30, 2015 (demand letter referring to judgment only).

[16] Canada Post appears to come up all thumbs in attempting to manage the feat of obtaining a signature for the registered letters sent. However, Canada Post’s failure to obtain a written receipt notwithstanding, the fact remains that there were three separate communications regarding the judgment and the registration of a writ of seizure and sale by regular mail and one by courier between July 2014 and January 2015 to the same address on Price Avenue upon which service had been made pursuant to the order of Master Short. None of these urgent communications were responded to and nothing in the record explains or evens suggests why not.

[17] It was only when the Sheriff sent correspondence about a pending sale of the property to that same address on Price Avenue that the defendant appears, miraculously, to have received almost instantaneous communication of the facts. So instantaneous indeed that the defendant claims to have received it the day before it was issued. The Sheriff’s notice to the defendant and his co-owner spouse Li Kang is dated April 2, 2015, whereas Li Kang claims to have received it when attending at the house on or about April 1, 2015. Even assuming as I do that the affidavit of Ms. Kang was mistaken in a slight degree as to the date of her visit to the house (April 2 vs. April 1), the fact remains that the Sheriff’s communication was received virtually immediately and was sent to the very same address.

[18] In bringing this motion, the defendant relies entirely upon an affidavit of his spouse, Li Kang. There is no evidence before me as to why the defendant’s spouse has filed this affidavit instead of the defendant himself. In this era of high speed communications, it is hard to believe that the defendant was unable to provide an affidavit - even one subsequent to the initial service of the motion record - that might have provided his evidence on the matters crucial to the motion without intermediary.

[19] The affidavit of Ms. Kang sheds no light whatsoever on the residence of the defendant, whether he had knowledge of the five attempts at service made, whether he had knowledge of the judgment once issued or what his explanation might be as to why the plaintiff’s communications to the Price Avenue property regarding this litigation did not come to his attention while the Sheriff’s communications did so almost instantaneously. Her affidavit similarly contains no information whatsoever as to what defence if any on the merits the defendant would intend to offer – whether in Singapore or in Canada.

[20] The affidavit raised one substantive, if procedural, issue regarding the underlying claim which does not appear to be in dispute. In the course of settlement discussions between the parties, the plaintiff’s solicitor delivered to the defendant a copy of the Credit Agreement referenced in the Statement of Claim. That Credit Agreement contains in paragraph 13 what is commonly known as an “exclusive jurisdiction” clause pursuant to which the contract is both governed by the laws of Singapore and subject to the exclusive jurisdiction of its courts. No reference to that clause is contained in the Statement of Claim nor, of course, in the default judgment issued on June 28, 2015. Ms. Kang’s affidavit provides no indication of what connections the defendant may have with Singapore or what procedural or substantive advantages he might look to secure there to deflect any suggestion that his desire to see proceedings moved to Singapore is motivated by something more significant than a desire to secure delay and thus time.

Issues

[21] This case raises the following issues to be determined:

a. Is the existence of an “exclusive jurisdiction” clause in the contract underlying the default judgment sufficient grounds to warrant setting aside a default judgment?

b. Does a bare hearsay allegation that the defendant failed in fact to receive a copy of the Statement of Claim warrant the exercise of the court’s discretion to set aside default judgment under Rule 19.08(1) of the Rules of Civil Procedure?

Discussion and Analysis

(i) Relevance of Exclusive Jurisdiction Clause

[22] There is no dispute on the evidence before me that the Credit Agreement which governed the obligations of the defendant to repay the advances made to him contains in clause 13 a provision that the agreement is subject to the laws of Singapore and the exclusive jurisdiction of the courts of that jurisdiction. The defendant alleges that the Statement of Claim should be struck and the plaintiff should be required to pursue its remedy before the courts of Singapore pursuant to clause 13 of the credit agreement.

[23] In my view, the defendant’s argument puts the jurisdictional cart before the default judgment horse. The plaintiff has obtained default judgment on what on its face is a plainly liquidated claim. The “exclusive jurisdiction” clause was not pleaded and, I might add, had no need to be pleaded. Based on the record before Master Short and the Registrar in signing judgment (and indeed, the court today), there was and is no basis to doubt that the court had jurisdiction to entertain the claim. The defendant was served in Ontario pursuant to the order of Master Short and – based on the only record before me – appears to be resident in this jurisdiction. He has provided no evidence of any other residence. The equivocal statement of his wife, about not residing at a particular property between two specific dates while travelling, does not provide the court with any information to contradict the natural inference to be drawn from his ownership as joint tenant of a property in Thornhill, his possession of a Toronto-issued Canadian passport, and his credit history showing credit at various Ontario casinos (among many, many others).

[24] The Supreme Court of Canada found in Z.I. Pompey Industries v. ECU-Line N.V., 2003 SCC 27 that a forum selection clause such as the one found in clause 13 of the Credit Agreement should be enforced unless the plaintiff can show strong cause not to enforce it. The plaintiff in this case has neither pleaded nor established by evidence anything that would satisfy me that there exists strong cause not to enforce such a clause. Were this a motion brought by the defendant prior to default judgment being entered or a defence having been delivered, he would doubtless have had a very strong case to make based upon Pompey. However, pleadings are closed and judgment has been entered.

[25] A proceeding commenced in the face of such a clause is not void. If the defendant elects to defend the matter in the jurisdiction and fails to raise an objection in a timely way, there is no lack of jurisdiction to proceed. In short, while frequently expressed as a jurisdictional objection, it is not strictly speaking a matter of initial jurisdiction of the court (or lack thereof). The decision to defer Ontario’s jurisdiction to another forum is a discretionary one. As such, Ontario has jurisdiction until it determines for valid reason not to assert it. While Pompey may suggest that Ontario will generally defer if requested to do so, entry of a judgment in a case where such a clause might have been pleaded is not irregular in any sense.

[26] A motion to stay proceedings in favour of an exclusive jurisdiction clause is both discretionary and procedural. The matter does not go to the merits of the matter. If, but for this issue, the court would not be inclined to set aside the default judgment because the defendant has failed to adduce any evidence as to the existence of a good faith defence to the merits of the claim and because of unexplained delay, I can see nothing in the existence of an exclusive jurisdiction clause to tilt the equitable balance. The defendant has introduced nothing to suggest that his interest in moving the matter to Singapore is motivated by anything substantive. There is no suggestion of a procedural advantage to Singapore nor is there any evidence that the defendant has any connection to Singapore. I would decline to give effect to an exclusive jurisdiction clause this late in the day – after nine months of unexplained delay in reacting to this litigation – and cause a plaintiff who has been thus delayed to re-start proceedings from scratch without so much as a hint that the defendant requesting the relief has any interest beyond delay to request it of me.

(ii) Does a bare hearsay allegation that the defendant failed in fact to receive a copy of the Statement of Claim warrant the exercise of the court’s discretion to set aside default judgment under Rule 19.08(1) of the Rules of Civil Procedure?

[27] Leaving aside the matter of the exclusive jurisdiction clause, the defendant relies upon precisely two factual allegations to underpin his request to set aside the default judgment. These are that “Mr. Tu did not reside at the Property during the time the statement of claim was purportedly delivered” (per para. 9, emphasis added) and that “I am advised by my husband, and verily believe, that he never received a copy of the Statement of Claim that was mailed to the Property” (par para. 10).

[28] The defendant’s position on this motion is that these allegations are in and of themselves sufficient to entitle him to the relief requested because a default judgment that was irregularly obtained must be set aside without further inquiry. In such cases, it is argued, there is no need for the court to consider other factors such as the merits of the matter in informing its discretion to set aside the judgment. Such an irregularly obtained judgment must be set aside as of right without the added requirement of addressing the other criteria because it was through no default on the defendant’s part that he or she was deprived of the right to make a defence in the first place: see Dawson’s Marina Limited v. Telfer, 2005 56205 (ON SC); Helpfast Personnel Inc. v. Newcastle Logistics Corporation and Allen Fracassi, 2011 ONSC 4612; and Royal Trust Corporation of Canada v Dunn et al., 1991 7227 (ON SC).

[29] The overall principle being applied in motions pursuant to Rule 19.08(1) of the Rules of Civil Procedure to set aside a default judgment “is to determine whether the interests of justice favour granting the order”: Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194 at para. 47. Laskin J.A. summarized the applicable test in Intact Insurance Company v. Kisel, 2015 ONCA 205 as follows (at para. 14):

“On a motion to set aside a default judgment, on the other hand, the court considers five major factors, one of which is whether the defendant has an arguable defence on the merits. The five factors are:

(a) whether the motion was brought promptly after the defendant learned of the default judgment;

(b) whether the defendant has a plausible excuse or explanation for the default;

(c) whether the defendant has an arguable defence on the merits;

(d) the potential prejudice to the defendant should the motion be dismissed, and the potential prejudice to the plaintiff should the motion be allowed; and

(e) the effect of any order the court might make on the overall integrity of the administration of justice.

Again, these factors are not rigid rules. The court has to decide whether, in the particular circumstances of the case, it is just to relieve a defendant from the consequences of default: Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, 372 D.L.R. (4th) 526, at paras. 48-50.”

[30] In my view, the “as of right” category for setting aside irregularly obtained default judgments is in reality no separate category at all but simply an instance where the interests of justice require a default judgment to be set aside. Where a judgment has been irregularly obtained in the first place, there is, in a sense, a “debt of justice” to be repaid. In each and every case, however, the discretion of the court must be brought to bear to determine whether, on the particular facts presented, it is in the interests of justice that the judgment should be set aside.

[31] A party who fails to act with diligence to set aside an allegedly irregular default judgment, for example, should not assume that the “debt of justice” is a marker to be called upon at discretion and without time limit. Rule 19.08 of the Rules of Civil Procedure grants the court discretion in such matters. Discretion, where granted, is exercised judicially – which is to say on a principled basis – and not by rote. Common sense is not checked at the judicial door. In my view, the correct approach is the flexible but principled one favoured by the Court of Appeal in Mountain View and Intact Insurance. There is no separate category of case where orders are expected to be issued as if from a vending machine upon the bare recitation of an allegation of irregular service, no matter how scant or implausible the evidence for it.

[32] I shall accordingly consider whether the interests of justice require me to set aside default judgment in this case having regard to factors listed in Intact Insurance without being strictly constrained by them.

[33] The only evidence proffered by the defendant is the affidavit of Li Kang. Li Kang is the spouse of the defendant Jian Tu. No affidavit of Mr. Tu was filed nor does Ms. Kang’s affidavit provide any explanation for why Mr. Tu has failed to provide an affidavit of his own knowledge, particularly on his own motion respecting matters within his own knowledge that are critical to the motion.

[34] Ms. Kang’s affidavit is quite notable for what it does not say. Among matters the affidavit does not address and questions it does not answer:

• Where does the defendant reside if not at the 72 Times Avenue property?

Ms. Kang indicates that her son lives in the property as tenant, but her affidavit does not actually affirm that the couple does not or did not at the relevant time live there. It is not exactly unheard of for a son to live with his parents, after all. Ms. Kang’s affidavit mentions attending the property on April 1, 2015, to seek Mr. Tu’s permanent resident card, indicating that the couple keep at least some of their personal property there. While the affidavit alleges that Mr. Tu “did not reside at the property during the time the Statement of Claim was purportedly delivered”, reciting travel to Australia, Hong Kong and Macau between May 2, 2014 and July 16, 2014, the affidavit makes no mention of the place of residence of the defendant before or after that trip.

• What explanation does the defendant make for failing to respond to the notification cards served before his alleged departure for Australia on May 2, 2014, or for his failure to respond to the demand letters made in respect of the judgment mailed on four separate occasions between July 2014 and January 2015?

The affidavits of service in the record certainly give rise to the inference that notice of service was received by someone in charge at the house and in a time frame prior to the trip allegedly taken by the couple from May 2, 2014, until July 16, 2014. Demand letters referencing the judgment were sent on four occasions after the couple had returned from their alleged trip to Australia. No explanation is offered for the inaction. The couple certainly had property stored there and access to the house and there is no suggestion that the son residing there – if indeed the parents did not – was somehow out of communication with the parents. The Sheriff’s notice in April 2015 managed to be noticed by the defendant virtually instantaneously but there is no evidence to explain why the five prior attempts at personal service and the four mailings of the Statement of Claim or judgment as well as one courier package to the very same address somehow became lost or otherwise failed to come to the defendant’s notice.

• Does the defendant deny ever receiving the Statement of Claim or merely the copy “that was mailed to the Property” pursuant to the order of Master Short?

In the circumstances, I do not think it untoward to exercise extreme caution in reading this carefully worded affidavit and declining to make allowances or draw favourable inferences. Paragraph 10 limits the assertion of non-receipt to the copy mailed per the order or Master Short and leaves open the possibility that the defendant received a copy from other means. Even if the defendant was travelling in May-June 2014 as alleged by Ms. Kang, there is no reason why her son might not have communicated by telephone, fax or email in that time frame, including a copy of the documents received, for example. While the defendant need not necessarily anticipate every question of the sort that might be raised on cross-examination in drafting an affidavit, the failure to provide any categorical denials such as “I had no idea this litigation had been commenced until…” begs a response to just such questions.

• What defence if any on the merits does the defendant intend to make if the requested leave to file a Statement of Defence is granted?

The affidavit is silent on the point. The only “defence” raised is purely procedural – that of forum – and gives no hint of a defence on the merits. The defendant does not suggest that he has even the beginnings of a credible, good faith defence on the merits of the claim. The claim, being a liquidated claim for credit advanced, is a fairly simple one and the number of defences that might be raised is not difficult to envisage. The defendant has made no explicit claim to having any basis to defend the action – whether in Singapore or Ontario – leaving the inference that his intentions are motivated more by the desire to delay than to see justice done.

• What connection if any to Singapore does the defendant have and what basis other than tactical does the defendant have for seeking to invoke the exclusive jurisdiction clause to require the plaintiff to bring further proceedings in Singapore?

• Why has the defendant failed to file his own affidavit as to his own information?

[35] While it is true that Rule 39.01(4) permits an affidavit to be made on information and belief, I am inclined to discount Ms. Kang’s affidavit where she merely recites the bald statements of her husband (see especially paragraph 10) even if she has followed the required form and attributed the source of the information relayed to her. A bald statement without explanation from the defendant would be of limited utility on such a crucial issue at the best of times – a bald statement of hearsay on a critical issue founded upon information and belief attributed to the defendant is quite another thing again.

[36] I am entitled to and do draw an adverse inference from the absence of direct evidence from Mr. Tu – the actual defendant in this case – on the matter of his residence and his alleged non-receipt of the Statement of Claim. I cannot accept as credible the evidence of Ms. Kang in paragraphs 9 and 10 of her affidavit. These two paragraphs contain bare statements without any explanation of the circumstances sufficient to lend them credibility.

[37] The plaintiff’s responding record contains ample evidence from which I might readily infer that the defendant resided at least some of the time at the subject property on Times Avenue in Markham. The defendant and his spouse are joint tenants of the property and have a mortgage. Equifax lists the property as the defendant’s residence and he had at least some of his personal property stored there. He provided a Toronto-issued Canadian passport as evidence of his identity when obtaining credit from the plaintiff. The affidavits of service in March and April 2014 strongly suggest that someone received notice at that time. Ms. Kang’s affidavit states that her son resided there at the time – there is no evidence to suggest that her son was likely to have destroyed all of these notices and letters or that he was hostile to or out of communication with the defendant. There is no evidence of what recollection the son has of these matters or any indication that his evidence was not available to the defendant. Notice cards were removed but no calls were made to follow up. On at least one occasion, lights were seen on in the house but there was no answer to the knocks at the door. Ms. Kang’s evidence is that she attended at the property to search for some identification belonging to the defendant in April 2015, confirming the connection of the defendant with the property. I simply cannot conclude on this evidence that the defendant had no notice of the proceeding against him given no response to this evidence and the flimsiest and most implausible of possible denials on his part.

[38] It was argued that Ms. Kang’s affidavit left so many matters un-addressed because the defendant was responding only to the affidavit of service filed in connection with the summary judgment itself (which refers only to the service by mail effected in May 2014). The plaintiff’s responding motion record was not served until one week before the motion was heard and the defendant claims to have lacked the time to provide a comprehensive response to it.

[39] There are two answers to this argument. Firstly, the defendant had one week in which to react. Materials could have been drafted, even hurriedly. An adjournment could have been sought prior to the hearing (rather than in mid-argument when the lack of responding evidence was raised). Secondly, the plaintiff’s responding materials placed before this court the bulk of the materials before Master Short when the substituted service order was made on May 2, 2015. These materials are referenced in the preamble to the Order of Master Short and were the defendant’s for the asking (either from the court or from opposing counsel). The only factual matter where the plaintiff might arguably have had only a week to respond was the evidence in the responding record regarding the plaintiff’s attempts to serve notice of the judgment in July 2014 – January 2015. If those were startling new facts, a short affidavit would not have been long to draft and mid-way through argument is rather late in the day to ask for more time to respond to such matters.

[40] I now turn to consider the evidence in light of the five criteria which the Court of Appeal found in Mountain View and Intact Insurance should be considered in motions to set aside default judgment.

Was the motion to set aside promptly brought after learning of the default judgment?

[41] The uncontradicted evidence of the plaintiff is that notice of the default judgment was sent to the defendant on four occasions from July 2014 through January 2015. Even if the defendant was travelling in May and June as alleged by Ms. Kang, there is no explanation for his inaction thereafter. The defendant has not denied receiving these letters. All of them went to the same place that the Sheriff’s notice went on April 2, 2015. The defendant has failed to provide any credible explanation why the Sheriff’s notice was received immediately while the others were not. Indeed, there is no explicit denial of receipt of the other letters contained in Ms. Kang’s affidavit at all (a bald statement in a lawyer’s letter attached thereto being of no evidentiary value). The defendant has provided no evidence to explain more than six months of delay in responding to the judgment and only took action when it appeared that the Sheriff was commencing proceedings to sell the property.

Is there a plausible excuse for failing to abide by the Rules?

[42] The defendant has offered no excuse for his inaction on this matter.

Does the defendant have an arguable defence on the merits?

[43] The affidavit of Ms. Kang offers not a hint of a suggestion of an actual defence on the merits of this case. The Statement of Claim alleges very considerable advances made to Mr. Tu by the plaintiff in February 2013 for which Mr. Tu was alleged to have signed acknowledgments. It alleges default in payment and demands for payment being ignored.

[44] There is nothing before me to suggest that the defendant has any reason (other than delay) in seeking to require the plaintiff to re-commence proceedings in Singapore. There is no suggestion that the law would be more favourable to the defendant there and there is no suggestion that the defendant has any connection with that jurisdiction at all. If, as the record before me indicates, the defendant is resident in Ontario, the plaintiff gave the defendant a jurisdictional advantage by bringing proceedings in the defendant’s home jurisdiction instead of proceeding in its own (home) jurisdiction since the plaintiff is a Singapore company operating a Singapore casino. The defendant would be put to greater expense and inconvenience in defending an action in Singapore than one in Ontario. Why then the desire to move proceedings? If the defendant had an interest in seeing justice done in Singapore and not in Ontario, why was no mention of this made until the motion was filed?

[45] I can only infer from the record before me that the defendant has no serious defence on the merits and is merely seeking delay for delay’s sake. The defendant has provided me with no evidence whatsoever to dispel that fairly obvious inference. There is little reason for the court to exercise its discretion in such a pursuit and yet the defendant has not bestirred himself to suggest an alternative explanation with admissible evidence.

Potential effect on defendant weighed against impact on plaintiff?

[46] Absent any suggestion that the defendant has a bona fide defence to the merits of the claim, it is impossible to conclude that the balance of convenience on a motion such as this favours the moving party. The plaintiff has been unpaid for almost three years on its liquidated claim. It has had to engage lawyers in Ontario to track down the defendant and has now found property that he owns and has secured a judgment. The defendant has given this court nothing to weigh on his side of the balance beyond the inference that he seeks to buy time with a procedural argument. It is rather late in the day to come up with new arguments about the merits that the defendant could and should have put on the record as soon as possible.

Integrity of the administration of justice

[47] The defendant strongly suggests that the integrity of the administration of justice leans heavily towards granting the order requested and setting aside the judgment due to the non-receipt by the defendant of the Statement of Claim. He argues that a plaintiff resorting to an alternative to personal service to effect service of a claim must accept the risk that if the alternative proves to have been ineffective to bring the claim to the attention of the defendant, the judgment may be set aside.

[48] There are two responses to this argument. Firstly, I do not accept the evidence that the defendant in fact had no notice of the claim. Bald, hearsay statements to that effect which have been made without explanation of the circumstances carry little weight in these circumstances for the reasons I have given above. Secondly, there is a great distinction to be drawn in my mind between an irregularly obtained default judgment and a properly obtained judgment following substituted service in accordance with a validly-obtained order of the court. In the latter case, the judgment is regular. While the interests of justice may well favour setting such a judgment aside if credible evidence is led to establish that the alternative to personal service employed was actually ineffective, such is not automatically the case. Even if I accepted the defendant’s assertion (which I do not), the defendant would have still to explain his delay in responding to the judgment and to provide the court with some indication that he has a bona fide defence on the merits.

Disposition

[49] For the foregoing reasons, I have dismissed the respondent’s motion with costs and so endorsed the motion record at the close of the hearing.

Sean F. Dunphy J.

Date: August 7, 2015